COMMENT: Courts turn children into commodities

by Bill Muehlenberg

News Weekly, August 9, 2003

In mid-July, a High Court ruling declared that a doctor had to pay the costs of rearing a child following a botched sterlisation. A Brisbane woman opted for a tubal ligation in 1992, later became pregnant and had baby Jordan in 1997.

The mother sued the doctor for negligence, and was awarded damages of $103,000 for the pregnancy and loss of income by the Queensland Supreme Court. She was also awarded $105,000 for the cost of rearing Jordan. The Queensland Court of Appeal upheld the decision, as did the High Court in July.

The case has raised a number of legal, social and ethical questions. Most importantly, can we put a price on childhood? The commodification of childhood has now been given special endorsement by the nation's highest court. Three of the seven judges did offer dissenting opinions, noting this attempt to put a monetary value on human life.

For example, Justice Dyson Heydon wrote: "The duty cast on parents which flows from the arrival of new human life is ... incapable of valuation or estimation or discharge of payment."

One of the few politicians to speak out against this unfortunate ruling was Deputy Prime Minister John Anderson. At the time he was Acting Prime Minister, and he made his comments in that capacity. He courageously spoke out on the case, warning that society is tending to regard "children as a consumer durable, there for our pleasure, rather like an expensive fridge or a new DVD player".

He passionately decried the utilitarian ruling, arguing that children are a gift, not a commodity: "I am deeply concerned by the High Court's decision to require a surgeon and the Queensland Health Department to meet the cost of bringing up a child following a failed sterilisation operation"

He continued: "It is repugnant that the birth of a healthy child like Jordan should be the subject of damages. Children are a gift from above, not an economic burden that can be enumerated and tabulated. The joy, outright responsibility to the child and society, and satisfaction far exceeds any economic considerations."

Mr Anderson's concerns are spot on. We already devalue children in our society. What message will this send out? How will it help us in our battle against child abuse and child abandonment?

Other questions arise. How will the child feel, knowing for the rest of his life that he was an unwanted child? The parents claim that although they did not want the child, they now love him. Still, the niggling understanding that one was never meant to be must have damaging effects.

Jordan's mother said on a television show, "I'm tired of the underdog being mistreated. We're Aussies, we've got to stand up and be counted for". Of course, the real underdog in this situation is the child, not the parents. But in the culture we live in, only adult whims and desires are catered for.

As society enshrines the right to abortion and other forms of death on demand, it is not surprising that activist judges and others should recognise the right not to be born - something which can only further drive a wedge between parents and children.

Australian columnist Janet Albrechtsen put it this way: "As a matter of public policy, the law should not commodify the birth and life of a child such as Jordan into a dollars and cents calculation.

"As a matter of public policy, the law should not encourage parents to come to court, to denigrate the birth and life of a child such as Jordan, to boost their damages. That promotes a conflict between parental self-interest and the selfless moral and legal obligations parents have to love and nurture their children."

Consequences

What other legal decisions will flow from this flawed ruling? As Barbara McDonald, a law professor at the University of Sydney, asks, what other claims of negligence can be made? What if a woman forgets to use her contraceptive pill, becomes pregnant and gives birth. Can her spouse or partner sue her for negligence? After all, he is legally responsible to financially support the child. Can he sue her for loss of earnings?

From there it is a short step to declaring that if parents are unhappy with the birth of a child (wrong sex, wrong hair color, wrong weight) that they too can sue doctors for negligence. After all, we live in an age of designer babies, and increasingly we can predict what sort of children we are bringing into the world. Who will decide what is a normal child?

Courts should not be making these kinds of decisions. John Anderson was quite right to express alarm at this decision. The worrying thing is this decision sets a precedent, and we may well find worse decisions to come.

Bill Muehlenberg is National Secretary of the Australian Family Association